Turkey: Organizational Liability Added To Art. 66 Of The Turkish Code Of Obligations Regarding Employer's Liability

Introduction

The legislator has not only made various changes on the abolished Turkish Code of Obligations ("aCO") numbered 818, but has also included various new concepts and institutions in the new code by implementing the Turkish Code of Obligations ("TCO") numbered 6098. One of the aforementioned concepts and institutions is "organizational liability." General information regarding this concept is provided, below.

The Regulation of Organization Liability in the Turkish Code of Obligations

During the time of the aCO, the employer's liability was regulated under Article 55 of aTCO. The aforementioned provision is comprised of two subparagraphs. In the first subparagraph, the employer's liability and the evidence of exclusion from liability were regulated; whereas, under the second subparagraph, the recourse opportunity of the employer, who pays the compensation, was set forth.

TCO Art. 66, which corresponds to aCO Art. 55, consists of four subparagraphs. Although the number of subparagraphs has changed, only the content of the third subparagraph in terms of the regulations of the previous code has been altered.

Accordingly, the provision entitled "Employer's Liability" reads:

The responsibility (sp. 1), the evidence of exclusion (sp. 2) and the possibility of recourse (sp. 4) has remained same as in the aCO. In the third subparagraph of the provision, this new type of responsibility is set forth, although provided for neither in the title, nor in its content.

Additionally, even though this regulation has been introduced with the TCO, it was also previously accepted in practice. The decision of the 4th Civil Chamber of the Supreme Court numbered 11751/10809 and dated 02.10.1978 is an example thereof. According to the decision, "the employer shall be deemed to be at fault if he uses personnel who are unqualified for the work in question, or arranges the working order of such work in a dangerous manner. Further, the working tools and the materials used for the performance of the work shall be in working condition. If the tools and vehicles or the material handed or provided to the personnel are faulty or broken, he shall be responsible for the organization, as well."¹

Conditions of Organizational Liability

Firstly, the conditions that are required for tort liability shall also be required for organizational liability. In other words, in order for a person to be responsible under this provision, an illegal act must have been committed, as well as damage suffered, and a causal link between the act and the damage must exist. However, under TCO Article 66/f.3, liability is set forth as an absolute liability and, consequently, fault shall not be required.

In addition, different from the employer's liability, in order for an organizational liability to arise, existence of the business, as well as occurrence of damages due to the activity of such business shall be required.

Novelties of the Provision

After the enactment of TCO Art. 66/f.3, a person who employs personnel at an organization operating as a business, shall not be excluded from liability by solely proving that he acted with due care in selecting, instructing and supervising – or in this vein, claiming that the damage occurred due to the lack of a sufficient number of employees in his business – an employee. As well, he shall prove that the organization was set up correctly and appropriately.

Such responsibility may be in question; for example, as the editor's liability due to the articles that were written by his employees in a newspaper that violate the rights of third parties, or in the case of an organization's emergency department, i.e. night shifts or Sunday shifts of a hospital, or a nurse not informing a doctor of a certain complication, or the performance of surgery by a doctor who works night shifts, or the undertaking of an at-risk childbirth by a midwife instead of a doctor².

Conclusion

With the introduction of TCO Article 66/3, a new type of responsibility, not previously identified in former laws, has been established. Along with the acceptance of the organizational liability as a type of absolute liability, a person who employs personnel at an organization operating as a business,, shall not be excluded from liability solely by proving that he acted with due care in selecting, instructing and supervising. It must be proven that the organization was established correctly, as well.

Footnotes

[1] For the previous practice, please see: Sabah ALTAY, 6098 Sayılı Türk Borçlar Kanunu Uyarınca Adam Çalıştıranın İşletme Faaliyeti (Organizasyonu) Dolayısıyla Sorumluluğu (TBK 66/3), Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, Özel Hukuk Sempozyumu Özel Sayısı, 6098 Sayılı Türk Borçlar Kanunu Hükümlerinin Değerlendirilmesi Sempozyumu (3-4 Haziran 2011), Sempozyum No. III, Prof. Dr. Cevdet Yavuz'a Armağan, p. 178, fn. 7-8.

[2] For these examples, please see: Ahmet TÜRKMEN, 6098 Sayılı Türk Borçlar Kanunu'na Göre Organizasyon Sorumluluğu (TBK m. 66/f. 3), İÜHFM V. LXX, N. 2, Y. 2012, p. 264-265.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.